' The facts giving rise to this petition are that defendant/petitioner filed application before the Rent Controller Hasilpur for eviction of one Muhammad Siddiq from a house in Chishtian town bounded by the following boundaries :- ' North : House of Hakim Muhammad Arif. South : House of Allah Rakhia.
' East : House of legal representative of Hakim Karim Bakhsh. West : Thoroughfare.
' The application was opposed by Muhammad Siddiq on the ground that the house in question actually belonged to Abdul Majid son of Farzand Ali Caste Bhatti (respondent) and as such there existed no relationship of landlord and tenant between him and the petitioner. The application was however finally accepted by the Rent Controller vide his order, dated 25th March, 1980. It may be stated here that Abdul Majid respondent had neither applied for being impleaded in the proceedings before the Rent Controller nor was he produced as witness by aforesaid Muhammad Siddiq. It is also noteworthy that no appeal was filed against the said eviction order and the same attained finality in due course of time.
2. The petitioner filed execution proceedings and on the other hand, Abdul Majid respondent filed a suit for declaration against the petitioner to the effect that he is owner in possession of the house in dispute and that the registered sale-deed, dated 4th January, 1925 under which the petitioner claimed to be its owner was fictitious and that his possession over the house be protected. The suit was dismissed under Order VII rule 11, C. P. C. As the respondent failed to pay the requisite court-fee of Rs, 3,000. Thereafter the respondent filed another suite in forma pauperis on 13th October, 1981 to the same effect saying that being a person without cans he was unable to pay the court-fee therefore permission to sue as pauperis be granted. Alongwith the suit an application for temporary injunction was also filed. The petitioner resisted the suit as well as the application for temporary injunction and ultimately the learned trial Court rejected the application for temporary injunction on 18th January, 1983. Feeling aggrieved the respondent filed an appeal in the Court of the learned Additional District Judge, Bahawalpur accepted the same on 1st June, 1983 and granted interim injunction restraining the petitioner from interfering with the possession of the respondent over the disputed house. It is against this order that the petitioner has filed the instant revision petition.
3. It is contended by the learned counsel appearing on behalf of the petitioner that the learned Additional District Judge had no jurisdiction ' to grant interim relief because the application for permission to sue as forma pauperis filed by the respondent had not yet been granted, so there being no plaint before the Court, jurisdiction pertaining to interim injunction under Order XXXIX, rules 1 and 2, C. P. C. Could not be exercised. Reliance in this regard has been placed on Four Friends Contruct ion Co. v. Dornez Borie Chashma Barrage Contractors and another (I) and Messrs Pan-Asian Trading Corporation v. Government of Punjab and 2 others (2). Learned counsel for the respondent in reply submitted that the moment an application for forma pauperis is filed a lis commences and the Court is competent to grant temporary injunction under Order XXXIX, rules 1 and 2, C. P. C. Numerous authorities of Indian jurisdiction commencing from AIR 1939 Mad. 80 upto AIR 1958 Pat. 264 (Full Bench decision) have been produced, but no authority from Pakistan jurisdiction in support of this view had been produced. Faced with this situation, learned counsel for the respondent conceded that as there is a conflict between the view expressed by Supreme Court of Pakistan and the Courts of India, therefore, the law as interpreted and -- (1) 1974 SCMR 461 (2) PLD 1978 Lab. 382 ' declared by the Supreme Court of Pakistan shall have to be followed. In case of Four Friends Construction Co. While interpreting Order XXXIII, rule 8 following significant observation was made by their Lordships of the Supreme Court :- "It will be seen that the application to sue in forma pauperis is to be treated as a plaint under rule 8 of Order XXXIII, only after the necessary permission has been granted. Before the grant of such permission, there is no plaint before the civil Court, and therefore, the provisions of Order XXXIX could not be invoked for the grant of a temporary injunction at this stage."
4. The facts of the present case are fully covered by the above precedent. Respectfully following the above view, I hold that because the plaintiff/respondent's application to sue in forma pauperis had not yet been allowed by the trial Court, consequently it has not yet been converted into plaint under rule 8, Order XXXIII, therefore, the powers under Order XXXIX, rules 1 and 2, C. P. C. Could not be exercised, as such the impugned order passed by the learned Additional District Judge is without jurisdiction and cannot therefore be sustained.
5. For what has been stated above, this revision petition succeeds and the impugned order is hereby set aside. There is no order as to costs.